SOLIDARITY TRADE UNION | EMPLOYMENT RIGHTS & CASE LAW
Wolfe v Taka Mayfair Ltd [2026] EAT 106
A worker is called into a meeting with his employers at the end of a shift. He has not been warned that his job is at risk. He has not been told that the meeting is disciplinary or that dismissal is a possible outcome. There is no trade union representative present, no colleague to offer support and no opportunity to prepare a defence. By the time he discovers what the meeting is really about, he has lost his job.
Most people would regard that as an obvious denial of basic procedural fairness. Yet, according to a recent Employment Appeal Tribunal judgment, the employer has not necessarily breached the statutory right to be accompanied.
The reason is remarkably simple. The worker never asked to be accompanied.
That is the uncomfortable lesson of Wolfe v Taka Mayfair Ltd [2026] EAT 106, decided by His Honour Judge Auerbach on 22 July 2026. The judgment exposes a significant weakness in legislation intended to protect workers during disciplinary and grievance proceedings. It also raises an important question about the relationship between rights that exist on paper and rights that can be exercised in practice.
For trade unions, the case deserves careful attention. It illustrates why workers need to understand their rights before they find themselves in difficulty, why employers should be challenged when they fail to follow fair procedures, and why the law itself may need strengthening.
What happened to Mr Wolfe?
Leonardo Wolfe was employed by Taka Mayfair Limited, a restaurant business, as a Head Sommelier and Manager. His employment began on 21 December 2022 and ended on 21 January 2023, a period of just one month.
According to the account he advanced before the Employment Tribunal, the circumstances of his dismissal were particularly troubling.
At the end of a working shift, he was drawn into a face-to-face meeting with the restaurant’s two owners. He had received no advance warning of the meeting’s purpose. Neither its disciplinary character nor the possibility of dismissal had been explained to him.
The employer disputed the characterisation of the meeting, describing it as a performance review rather than a disciplinary hearing. Wolfe maintained that the meeting was one at which the statutory right to be accompanied should have applied.
That disagreement was never finally resolved in the proceedings under consideration. Instead, the case turned on a narrower legal question.
Wolfe had not asked to bring a trade union representative or work colleague to the meeting. He argued that he had been unable to make an informed request because he had not known what was about to happen.
There is an obvious practical difficulty here. A worker cannot readily exercise a right attached to a particular type of meeting if the employer conceals, or simply fails to disclose, the meeting’s true nature.
Wolfe subsequently brought Employment Tribunal proceedings and sought permission to amend his claim to include a complaint that his statutory right to be accompanied had been breached.
The Tribunal refused the amendment. Even accepting his factual account for the purpose of considering the application, it concluded that the proposed claim could not succeed. Section 10 of the Employment Relations Act 1999 required him to have made a request to be accompanied. He had not done so.
Wolfe appealed that decision.
It is important to understand precisely what the appeal concerned. The Employment Appeal Tribunal was not deciding whether the original dismissal was fair, nor whether the employer had behaved properly in every respect. It was deciding whether the Employment Tribunal had been legally correct to refuse an amendment adding a particular statutory complaint.
That distinction matters because an employer may escape liability under one statutory provision while still having acted unfairly or unreasonably under another.
What does the law actually say?
The right to be accompanied is contained in section 10 of the Employment Relations Act 1999. It applies to workers, not merely those who satisfy the narrower legal definition of employee, and it does not depend on a minimum period of service.
The legislation establishes two conditions for the statutory right to become operative.
First, the worker must be required or invited to attend a qualifying disciplinary or grievance hearing. Secondly, the worker must reasonably request to be accompanied.
Where those conditions are satisfied, the employer must permit the worker to be accompanied by an eligible person, generally an appropriate trade union official or another worker employed by the same employer.
The companion is not there merely to observe proceedings. The legislation allows the companion to put the worker’s case, respond to points raised during the hearing, sum up the worker’s position and confer with the worker privately.
A companion cannot insist on answering every question on the worker’s behalf or preventing the employer from presenting its case. Nevertheless, the role provides significant practical protection.
A representative may identify procedural irregularities, challenge unsupported allegations, seek clarification, ensure relevant mitigating circumstances are considered and help prevent an employer from using its greater experience or authority to overwhelm an individual employee.
There is also a statutory postponement right. Where the chosen companion is unavailable, an eligible worker can propose a reasonable alternative date within the statutory five-working-day period, and the employer must postpone accordingly.
These protections are valuable, particularly when dismissal is a possible consequence.
However, the legislation contains a crucial qualification. The worker must request accompaniment before the employer becomes subject to the relevant duties.
That requirement proved decisive in Wolfe’s case.
The argument against the employer’s approach
Wolfe’s argument before the Employment Appeal Tribunal was both practical and persuasive from the standpoint of workplace fairness.
If an employer can avoid the statutory duty simply by failing to explain that a meeting is disciplinary, the protection becomes vulnerable to circumvention.
Consider the difference between two situations.
In the first, an employee receives a letter explaining that they are required to attend a disciplinary hearing, setting out the allegations and warning that dismissal is a possible outcome. The employee requests a trade union representative, and the employer refuses.
That is a straightforward potential breach of section 10.
In the second, an employee is simply told to attend a meeting with management. No allegations are disclosed. No warning is given. During the meeting, the employer raises concerns about performance or conduct and announces dismissal.
The employee may never have requested a representative because there was no reason to anticipate needing one.
Yet the practical outcome is substantially the same. In both cases, the worker faces a potentially career-ending decision without the support that Parliament intended the legislation to provide.
Wolfe argued that allowing the second situation to escape the statutory protection undermined the legislation’s purpose.
He also challenged the suggestion that employees should simply ask for representation whenever they are summoned to an unexplained meeting.
Workers are not always in a position to challenge management. Some may fear that asking for a union representative will be interpreted as confrontational. Others may be unfamiliar with employment law, inexperienced in disciplinary procedures or anxious about their position.
Those fears are especially acute among workers with limited service, insecure contracts or little practical bargaining power.
Judge Auerbach recognised the force of these concerns. Nevertheless, he concluded that the statutory wording was sufficiently clear to prevent the Tribunal from adopting Wolfe’s proposed interpretation.
The judge’s task was to apply the law Parliament had enacted, rather than to rewrite that law in accordance with what might be regarded as desirable policy.
The judgment makes clear that the express wording requires an actual request. Without one, the accompanying obligations in section 10 do not arise.
The judge concluded that any gap in protection was ultimately a matter for Parliament to address.
The difference between legal rights and workplace fairness
One of the most important aspects of the judgment is its treatment of the Acas Code of Practice on Disciplinary and Grievance Procedures.
The Code sets out standards of fairness that employers are expected to observe when dealing with disciplinary matters.
Under the Code, employees facing disciplinary proceedings should ordinarily receive written notification of the allegations, sufficient information to understand the case against them and reasonable time to prepare a response.
They should also be informed of their right to be accompanied.
Paragraph 10 of the Code expressly addresses notification of that right. Yet, as the Employment Appeal Tribunal explained, the Code does not have precisely the same legal status as an Act of Parliament.
An employer’s failure to comply with the Code does not automatically give rise to an independent claim for compensation.
Instead, tribunals must take relevant provisions into account when deciding applicable claims, such as ordinary unfair dismissal. In appropriate cases, an unreasonable failure to follow the Code may also affect compensation, with a potential adjustment of up to 25 per cent.
This creates an important distinction.
An employer who fails to explain the purpose of a disciplinary hearing may have disregarded recognised standards of fair treatment. If an eligible employee is dismissed, that failure may contribute to a finding of unfair dismissal.
Nevertheless, it does not automatically establish a breach of section 10 unless the worker made the required request to be accompanied.
The distinction might satisfy the technical requirements of the legislation, but it is difficult to defend as a coherent approach to workplace justice.
Why should an employer’s obligation to respect a particular statutory protection depend on whether an employee recognised a danger that the employer had failed to disclose?
Acas guidance clearly recognises the value of giving workers proper notice and an opportunity to prepare. The judgment demonstrates that following good practice and complying with the narrow requirements of a particular statute are not always the same thing.
A request made during the meeting could make a difference
Although Wolfe lost his appeal, the judgment contains an important observation that union representatives should not overlook.
Judge Auerbach considered the possibility of a worker discovering, during an unexpected meeting, that formal disciplinary action might be taken.
What if that worker immediately asks for a trade union representative?
The judgment discussed this possibility with reference to Yoshovska v Goldman Sachs International, an Employment Tribunal decision from January 2022.
The suggestion was that a worker who only becomes aware of the disciplinary nature of a meeting once it is underway may still be able to make a reasonable request for accompaniment at that point.
There is nothing in section 10 requiring every request to be made in writing, nor does the legislation prescribe a particular minimum period before the hearing by which the request must be submitted.
It follows that an oral request made during a meeting may be legally significant.
A worker who suddenly realises that a supposed informal discussion has become a disciplinary hearing should therefore make an immediate and explicit request for representation.
The employer may then need to adjourn proceedings to allow the statutory right to be exercised.
Importantly, however, the judge did not finally determine that particular question. He identified it as a potentially arguable route, but it could not assist Wolfe because Wolfe had made no request at all.
That qualification should not be lost. The judgment supports the practical importance of making a request during a meeting, but it should not be presented as definitively settling every question about a late request or adjournment.
The distinction is particularly important in workplace representation, where an overconfident reading of a judgment can be as damaging as misunderstanding the law altogether.
Could the dismissal still have been unfair?
A natural reaction to the case is to ask whether Wolfe could have pursued ordinary unfair dismissal rather than relying on the right to be accompanied.
His exceptionally short employment was a significant obstacle.
At the time of his dismissal in January 2023, employees ordinarily needed two years’ continuous service to qualify for protection against ordinary unfair dismissal.
Wolfe had approximately one month’s service.
There are exceptions where dismissal relates to particular automatically unfair reasons, and discrimination protections are not generally dependent on completing two years’ service. However, the facts described in the EAT judgment do not, by themselves, establish that such an exception applied.
This is one reason the right to be accompanied is so important.
Unlike ordinary unfair dismissal protection under the law applicable to Wolfe’s dismissal, section 10 does not require two years’ service.
A worker may be entitled to the protection from the very beginning of the working relationship.
Indeed, its application is wider in another respect. It extends to qualifying workers rather than being restricted exclusively to employees.
That makes it particularly valuable for people in insecure employment who may have limited access to other employment protections.
The difficulty exposed by Wolfe’s case is that the benefit of this wider protection may disappear at precisely the moment an inexperienced or vulnerable worker needs it most.
There is, nevertheless, another important legal distinction.
The EAT referred to Talon Engineering Ltd v Smith, an earlier decision demonstrating that the statutory right to accompaniment and the general law of unfair dismissal are separate.
A breach of section 10 does not inevitably render a dismissal unfair. Equally, an employer may comply with section 10 and still carry out an unfair dismissal.
Fairness depends on the wider circumstances, including the employer’s reasons, investigations, procedures, and treatment of the employee.
It would therefore be wrong to conclude from Wolfe that employers have unrestricted freedom to dismiss workers at meetings arranged without warning.
They do not.
The judgment decides a specific statutory issue, not the general acceptability of surprise dismissals.
A right without an effective remedy?
There is another aspect of section 10 worth examining: the compensation available when employers breach it.
Where an Employment Tribunal upholds a complaint under section 11, it may order compensation of up to two weeks’ pay, subject to the relevant statutory calculations.
That is a comparatively modest financial remedy.
For a worker who has lost a job, the practical consequences can be far greater than the amount recoverable under this particular provision.
The legislation also provides separate protections against victimisation for exercising, or seeking to exercise, the right to be accompanied.
Section 12 protects workers against detriment for invoking the statutory rights and includes protection against dismissal for that reason. Certain claims arising from dismissal for exercising these rights do not require the ordinary qualifying period of employment.
There is protection, too, for those who accompany or seek to accompany another worker under the statutory arrangements.
These provisions demonstrate that Parliament recognised the risk of employers retaliating against workers or representatives who assert their rights.
Yet the Wolfe judgment exposes a difficulty that arises before retaliation even becomes relevant.
What happens when the worker never gets a meaningful opportunity to assert the right in the first place?
That is the central problem.
The statutory framework protects workers who invoke accompaniment rights, but the particular duty to permit accompaniment can be avoided where no request is made, even if the absence of a request results from the employer’s failure to explain what is happening.
This is an unsatisfactory imbalance.
The employee must be sufficiently informed, sufficiently confident and sufficiently quick-thinking to recognise the situation and invoke the protection. The employer, meanwhile, is not subject to an equivalent express obligation under section 10 to ensure that the worker knows the nature of the meeting and the right that may arise.
That does not mean every employer will exploit the position. Many employers will follow established procedures and allow representation as a matter of course.
The concern is that the law leaves room for less scrupulous employers to take advantage of a worker’s uncertainty.
A statutory safeguard should not depend so heavily on the employee’s ability to anticipate management’s intentions.
Why the judge could not close the loophole
It would be easy to criticise the EAT for reaching a conclusion that appears harsh. That would miss an important feature of the judgment.
Judge Auerbach did not suggest that Wolfe’s concerns were trivial or irrational.
On the contrary, the judgment engaged carefully with the argument that an employer could undermine the protection by withholding information about a meeting.
The difficulty was the statutory wording.
Section 10 expressly requires a reasonable request. There was no dispute that Wolfe had failed to make one.
The judge considered whether the legislation could be interpreted more broadly by reference to its purpose, the history of its introduction or human rights principles.
He concluded that these approaches could not remove a requirement stated unambiguously by Parliament.
The purpose of statutory interpretation is not to give judges unlimited freedom to repair legislation whenever its operation produces an unattractive result.
That is an important constitutional principle, even when its practical consequences are frustrating.
The judgment therefore puts responsibility for any reform where it properly belongs: with Parliament.
The final conclusion was that if the absence of protection in these circumstances represents a legislative gap, Parliament must decide whether to close it.
For unions, that creates an opportunity to make the case for a straightforward and overdue reform.
What should change?
There is a strong argument for amending section 10 so that employers have an express statutory obligation to notify workers of their right to be accompanied whenever they are required to attend a qualifying disciplinary or grievance hearing.
That notification should explain the nature of the meeting, the possible consequences and the worker’s entitlement to representation.
The duty should not depend on the employee requesting information that the employer ought to have supplied in the first place.
It would also be sensible to provide expressly that where an apparently informal meeting develops into one at which formal disciplinary action may be taken, the employer must stop proceedings, explain the worker’s rights and provide a reasonable opportunity to secure representation.
Such requirements would hardly impose an unreasonable burden on responsible employers. Organisations already following the Acas Code should have little difficulty complying.
The change would principally affect employers who fail to observe the standards of transparency and procedural fairness that should already be normal practice.
A further question concerns remedies.
The existing maximum compensation of two weeks’ pay for a straightforward breach of accompaniment rights may provide an inadequate deterrent, particularly where employers deliberately exclude union representation.
There is an argument for stronger remedies where an employer knowingly disregards a worker’s statutory rights, alongside effective protection against retaliation.
The wider issue is that workers should not have to understand complicated distinctions between statutory obligations, codes of practice and qualifying periods merely to obtain fair treatment.
Employment law is already complex. That complexity should not become an advantage for employers who control the disciplinary process.
What Solidarity members should do
The immediate lesson from Wolfe is that workers must be proactive about representation.
Members should never assume that a meeting described as informal, a performance discussion, a review or a routine management conversation cannot have disciplinary consequences.
Where there is uncertainty about a meeting’s purpose, the sensible course is to ask for clarification before attending.
If there is any possibility of formal disciplinary action, members should expressly request accompaniment by a trade union representative.
Making that request in writing creates a useful record, although the statutory requirement does not insist upon written notification.
The following wording would be appropriate:
I would like clarification of the purpose of this meeting and whether any disciplinary action, including a warning or dismissal, is being considered. If this is a disciplinary hearing, I am exercising my statutory right under section 10 of the Employment Relations Act 1999 to be accompanied by a trade union representative. I request that the hearing be arranged to allow my representative to attend.
If the disciplinary nature of a meeting only becomes apparent once proceedings have started, the worker should make the request immediately and ask for an adjournment.
For example:
It now appears that this meeting may result in disciplinary action. I am requesting trade union representation under section 10 of the Employment Relations Act 1999. I ask that the meeting be adjourned so that I can arrange for my representative to attend.
There is no guarantee that every dispute over such a request will be resolved in the worker’s favour. Nevertheless, making the request removes the particular difficulty that defeated Wolfe’s claim: the complete absence of any attempt to invoke the statutory right.
Members should also record what happened, including who attended, what was said about the meeting’s purpose, when disciplinary consequences were first mentioned and how management responded to any request for representation.
These details may become crucial evidence in subsequent proceedings.
It is important to distinguish between a disciplinary investigation, an informal management discussion and a formal disciplinary hearing. The statutory right does not ordinarily apply to purely investigatory meetings or informal discussions that cannot themselves result in disciplinary action. However, workplace policies may provide wider rights, and disability-related reasonable adjustments may create additional obligations.
Members should therefore seek advice rather than assume that the statutory minimum represents the full extent of their protection.
Lessons for union representatives
For trade union representatives, the case has implications extending beyond advising individual members.
One is the importance of challenging employers who use ambiguous terminology to describe meetings.
A meeting does not necessarily cease to be disciplinary simply because management calls it a performance review, fact-finding conversation or informal discussion.
Its actual purpose and potential consequences matter.
If a meeting can result in a formal warning, dismissal or another qualifying disciplinary outcome, the statutory definition may be satisfied regardless of the label the employer attaches to it.
Representatives should examine the employer’s own disciplinary procedure and any contractual or collectively agreed provisions concerning representation.
These may provide protections exceeding the statutory minimum.
A collective agreement, for example, may require advance notice, disclosure of allegations and union representation in circumstances where the precise statutory duty under section 10 has not yet arisen.
It is also worth examining whether the employer has followed the Acas Code, whether the disciplinary investigation was adequate, whether the worker had a meaningful opportunity to respond and whether any dismissal was reasonable in the circumstances.
Wolfe should not encourage representatives to abandon potentially meritorious cases simply because no request for accompaniment was made.
It does, however, mean that an isolated claim for breach of section 10 is unlikely to succeed where the evidence establishes that the worker never made such a request.
Finally, representatives should remember that tribunal claims are subject to strict time limits, generally starting at three months less one day for the relevant employment event, subject to applicable rules and extensions. Acas early conciliation can affect the calculation. Members should seek advice promptly rather than wait for internal proceedings to conclude.
The importance of trade union membership
Perhaps the most significant lesson concerns the practical value of trade union membership.
Employment rights are not self-enforcing.
Workers may possess considerable protections under legislation yet be completely unaware of their existence until a dispute develops.
Even those who know their rights may lack the confidence to challenge management, particularly when they are new to an organisation or worried about losing their livelihood.
An experienced union representative can change that balance.
Representatives understand the relevant procedures, recognise when a supposedly informal conversation has become a disciplinary matter and know when to insist that proceedings are adjourned.
They can identify whether the employer has disclosed the allegations, provided adequate evidence and allowed the worker sufficient time to prepare.
They can also ensure that disciplinary decisions are challenged through the proper channels where there are grounds to do so.
None of this guarantees that every employee will avoid disciplinary action or dismissal. Nor should it.
Employers have legitimate reasons to address misconduct and poor performance. A fair disciplinary system must accommodate those responsibilities.
But it must also ensure that workers are treated with dignity, allowed to answer allegations and given a genuine opportunity to defend themselves.
These principles are not obstacles to effective management. They are essential conditions of fair management.
Solidarity’s approach is to ensure that members do not have to face workplace disputes alone. Where representation rights arise, we want members to exercise them confidently, with access to advice before decisions are taken rather than having to pursue remedies after the damage has been done.
A victory for the wording of the law, but not necessarily for justice
The decision in Wolfe v Taka Mayfair Ltd is legally understandable. The Employment Appeal Tribunal was asked to interpret a statute, and the relevant words leave little room for manoeuvre.
The judge did not invent the requirement that workers request accompaniment. Parliament put it there.
Yet that does not make the outcome satisfactory.
The case demonstrates how a legal protection can be weakened by the conditions attached to exercising it.
A worker who knows a disciplinary hearing is taking place can request representation. A worker who has no idea that a disciplinary hearing is taking place may fail to do so, even though the need for representation is just as great.
The law recognises the former situation but, as this judgment confirms, does not adequately address the latter through section 10.
There is something deeply unsatisfactory about a system in which an employer’s failure to provide information can leave a worker unable to exercise a statutory right, without that failure itself constituting a breach of the particular provision intended to protect them.
The answer is not to criticise judges for applying the law. It is to improve the law.
Parliament should make it an explicit statutory duty to notify workers of their accompaniment rights and provide a meaningful opportunity to exercise them before formal disciplinary action is taken.
Until that happens, workers and their unions must deal with the law as it stands.
For Solidarity members, the message is clear. When management calls you into a meeting and you suspect that your employment may be at risk, establish what the meeting is about and request your union representative. If the meeting unexpectedly turns disciplinary, make that request immediately.
The most important words in a disciplinary meeting may be spoken before the employer has even explained its allegations.
They are the words that ensure you do not face those allegations alone.
Together we are strong.
By Maria Camara
Legal reference: Wolfe v Taka Mayfair Ltd [2026] EAT 106, judgment of HHJ Auerbach, 22 July 2026. The article reflects the law and published guidance reviewed on 14 October 2026. The 2026 Acas consultation draft is not treated as an operative replacement for the existing Code.
Primary judgment: Employment Appeal Tribunal judgment. Relevant guidance: Acas Code of Practice.
